Friday, January 14, 2011

Don't tell me how to spend my money

Though gays are feeling good that Don't Ask, Don't Tell has been repealed by Congress (though still in effect for now), not every action by our government is going our way. This is, after all, Obama we're talking about. The latest consternation is that the Dept. of Justice has filed an appeal of the two Massachusetts cases challenging the Defense of Marriage Act (DOMA) section 3. This is the part that says the federal government can't recognize same-sex marriages.

The cases are before the 1st Circuit Court in Boston. They've already been through district courts where DOMA-III was declared unconstitutional.

Because we're talking discrimination over sexual orientation (and not race) the gov't only has to declare there is a rational reason for its discrimination (not issuing drivers licenses to 15 year olds due to their immaturity is a rational reason for discrimination). The DOJ tosses these ideas out there with explanations and counter arguments by Ari Ezra Waldman:

* Congress wants to maintain the status quo while the various states experiment with marriage. But (1) there was no federal marriage law before DOMA and (2) states are free to experiment with gun laws without any federal recognition. Besides, if states can define marriage any way they want it is inconsistent to claim there is a federal definition.

* Congress wants federal uniformity to avoid gays in Mass. getting federal marriage benefits while gays in Texas don’t. But 16 year olds in some states can get married while in other states they can't and the feds don't care.

Here is where it gets interesting. Alas, I got a bit lost in the arguments. I hope I have represented them accurately.* According to the Spending Clause of the Constitution (I think I have it right) Congress controls government spending. DOMA-III affects government spending -- the gov't would have to pay marriage benefits to gays.

* The Tenth Amendment says that the powers not listed for the feds are left to the states. But the feds can claim power over marriage through the Spending Clause.

If a court says DOMA-III is unconstitutional then that court is telling Congress how to spend money. Do we want that precedent? What about the precedent of a court saying the feds can overrule the Tenth Amendment? Get a few Tea Party judges into the mix and a ruling that says Congress can't spend money to enforce the Civil Rights Act or one that says federal environmental legislation (no matter how lax) trumps California's efforts could be a big blow to progressive causes.